Hardwick v. Nurse, et al

Filing 83

MEMORANDUM OPINION. Signed by Judge Richard G. Andrews on 2/6/2020. (nms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
JAMES HARDWICK,
Plaintiff,
: Civil Action No. 17-668-RGA

V.

CONNECTIONS COMMUNITY
SUPPORT PROGRAMS , INC .,
Defendant.

James Hardwick, James T. Vaughn Correctional Center, Smyrna , Delaware .
Pro Se Plaintiff.
Dana Spring Monzo and Roopa Sabesan , White & Williams , Wilmington , Delaware .
Counsel for Defendant.

MEMORANDUM OPINION

6,

February
2020
Wilmington , Delaware

Plaintiff James Hardwick, an inmate at the James T. Vaughn Correctional
Center in Smyrna , Delaware , filed this action pursuant to 42 U.S .C. § 1983.1 (D .I. 2 , 8) .
Defendant Connections Community Support Programs is the contracted medical
provider for the prison. Plaintiff appears prose and has been granted leave to proceed

in forma pauperis. (D.I. 6) . Before the Court are Plaintiff's motion for reconsideration ,
motions to compel , and motion to disqualify judge (D .I. 56 , 76 , 77 , D.I. 80) and
Defendant's motion for summary judgment (D.I. 58). Briefing is complete.

I.

BACKGROUND
The record 2 reflects that on June 4 , 2015 , Plaintiff submitted a sick call for pain in

his left shoulder after he felt something "pop" while lifting weights. (D.I. 60 at 46 , 47 ,
335). The sick call slip states that Plaintiff possibly injured his rotator cuff. (/d. at 335) .
On June 5, 2015 , a nurse triaged the sick call slip and scheduled Plaintiff for a regular
sick call. (Id. at 64 , 335) . On June 6 , 2015 , Plaintiff was seen by a registered nurse,
who examined him , prescribed Ibuprofen , and instructed Plaintiff to rest. (Id. at47).
On June 13, 2015 , Plaintiff submitted a grievance complaining of lack of medical
care and stated that when he was seen on June 6 , 2015, he was told he would be seen
by a physician on the following Tuesday. (/d. at 109). On July 20 , 2015 , Plaintiff

1

When bringing a § 1983 claim , a plaintiff must allege that some person has deprived
him of a federal right, and the person who caused the deprivation acted under color of
state law. West v. Atkins, 487 U.S. 42 , 48 (1988).
2 The reverse chronological narrative of Plaintiff's injury and treatment from June 2015
through August 2016 is in the record at D.I. 60 at 30-48.

1

presented for follow-up , complained of pain , and medical personnel scheduled a left
shoulder x-ray. (/d. at 46) . Plaintiff was seen again on July 30 , 2015 with continued
complaints of left shoulder pain. (/d.). The x-ray, taken on August 4, 2015 , revealed no
fracture , and its findings were reviewed with Plaintiff on August 28 , 2015 . (Id. at 45) .
Plaintiff was also examined on August 28 , 2015 , when he expressed concerns that he
had torn something that needed repair, reported negative pain relief, and denied any
radiation or tingling in his left arm. (/d.) . Plaintiff had a mildly decreased range of
motion and was able to lift the left arm to shoulder level but with pain . (/d.). Medical
personnel determined that surgical intervention was not currently indicated despite
Plaintiff's request. (/d.). Plaintiff was prescribed pain medication and scheduled for a
"physical therapy consult for strengthening and ROM [range of motion]. " (Id. at 44-45) .
Plaintiff was evaluated for physical therapy on September 3, 2015 . (Id. at 44).
He was given a daily home program and scheduled for weekly follow-up physical
therapy visits. (/d.) . Plaintiff received physical therapy through October 8, 2015 , when
he was discharged and referred back to the provider for follow-up. (/d. at 42-44).
Physical therapy notes indicate that Plaintiff was not responding to physical therapy and
"almost certainly there is a moderate to large rotator cuff tear" that an MRI would
confirm . (Id. at 42-43) . On November 23 , 2015 , Plaintiff submitted a grievance and
asked to see an outside orthopedic specialist. (Id. at 114-15).
On December 10, 2015 , Plaintiff was examined and evaluated . (/d. at 42) .
Medical personnel recommended Plaintiff undergo an MRI and the consult was
approved on December 21 , 2015.

(Id.). On January 15, 2016 , Plaintiff was transported

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to Mid-Delaware Imaging for an off-site MRI of the left shoulder. (Id. at 41 ). The MRI
confirmed the presence of a tear in Plaintiffs supraspinatus and infraspinatus tendons.
(Id.). On February 14, 2016 , Plaintiff submitted a grievance and asked to be seen by an

outside orthopedic specialist. (Id. at 117-18). Plaintiff was scheduled for an orthopedic
consult and , on February 26 , 2016 , evaluated by orthopedist Dr. Richard DuShuttle who
recommended Plaintiff undergo an arthroscopic rotator cuff repair. (0 .1. 60 at Ex. A at
40-41 ; 0 .1. 61 at 173-74). Dr. DuShuttle also prescribed a shoulder abduction sling and
a pillow to elevate for pain . (0 .1. 61 at 174, 181). On March 4, 2016 , Medical staff
faxed the Warden a medical memorandum request to security for the items prescribed
by Dr. DuShuttle. (Id. at 477) .
Dr. DuShuttle performed left shoulder arthroscopy with open decompression on
Plaintiff at Dover SurgiCenter on March 31 , 2016 . (0.1. 60 at 39-40; 0 .1. 61 at 184-85).
Following the surgery, Plaintiff returned to the prison infirmary for monitoring and was
discharged from the infirmary the next day. (Id. at 38-39) . On April 4, 2016 , Plaintiff
submitted a grievance and asked to receive the pain medication prescribed by Dr.
DuShuttle following the surgery. (Id. at 120). In the grievance Plaintiff states that he
was prescribed both Percocet and Naproxen , but he only received Naproxen which did
not "handle" the intense pain. (Id.).
Plaintiff saw Dr. DuShuttle for follow-up care on April 6 and 13, 2016 . (Id. 37-38) .
In the interim , he was seen by prison medical personal (Id. at 38) . Plaintiff had
complaints of pain on April 13, 2016 , and was prescribed pain medication and muscle
relaxants . (0.1. 60 at 37 ; 0.1. 61 at 184-85). In the weeks that followed , Plaintiff was
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routinely seen by Connections staff for pain management and prescribed Tramadol and
Ibuprofen. (0 .1. 60 at 36). By May 2, 2016 , Plaintiff asked to stop the pain medication
and muscle relaxants and indicated that Ibuprofen was "enough for treatment. " (Id. at
35) . He was seen by Medical personnel several times during May. (Id. at 34) .
Medical records dated May 4 , 2016 , indicate that Plaintiff returned from an offsite visit with an order for physical therapy and that his exam was "unremarkable." (Id.
at 35) . Beginning June 13, 2016, Plaintiff received physical therapy sessions at
Christiana Care Rehab Center for approximately three months , two times a week. (Id.
at Ex. A at 30-34) . In late August 2016 , Plaintiff was discharged from physical therapy
with his goals met. (Id. at 30). Upon discharge , Plaintiff had minimal pain. (Id.). Since
then , Plaintiff has complained of some shoulder pain when seen by Medical staff, and
he has been provided pain medication . (Id. at 26-28).
II.

MOTION FOR RECONSIDERATION
On March 25 , 2019 , the Court entered a memorandum and order that denied

Plaintiff's request for counsel , motion for issuance of subpoenas , motion to compel , and
motion for an order of contempt. (0.1. 54, 0 .1. 55). On April 3, 2019, Plaintiff filed a
"response to the Court's denial of corrective action against Connections" which seems
to be a motion for reconsideration of that portion of the memorandum and order denying
Plaintiff's motions to compel. (See 0 .1. 56) .
The motion indicates that the discovery deadline expired on December 17, 2018 ,
yet Connections continued to make discovery requests . Plaintiff also complains that
Connections failed to make initial disclosures as required Fed . R. Civ. P. 26(a)(1) . (0 .1.
4

56) . However, cases like this , with a prose incarcerated individual , are exempt from the
initial discovery requirement.

See Fed. R. Civ. P. 26(a)(1 )(B)(iv).

Plaintiff's addendum

references his request for counsel and asks the Court to order Connections to comply
with a subpoena and to respond to discovery. (D.I. 57).
The purpose of a motion for reconsideration is to "correct manifest errors of law
or fact or to present newly discovered evidence ." Max's Seafood Cafe ex rel. Lou-Ann,

Inc. v. Quinteros, 176 F.3d 669 , 677 (3d Cir. 1999). "A proper Rule 59(e) motion . ..
must rely on one of three grounds: (1) an intervening change in controlling law; (2) the
availability of new evidence ; or (3) the need to correct clear error of law or [to] prevent
manifest injustice." Lazaridis

v. Wehmer, 591 F.3d 666, 669 (3d Cir. 2010) .

The Court has reviewed the filings and the relevant memorandum and order.
The memorandum pointed Plaintiff to the Federal Rules of Civil Procedure when
seeking discovery from a party (D .I. 54 at 2-3) , and observed that Plaintiff did not
indicate what documents he sought through discovery (id.at 3) . After Plaintiff filed the
motion for reconsideration , the Court on May 2, 2019 , extended the discovery deadline
until July 1, 2019 (see 0.1. 65) , giving Plaintiff sufficient time to seek discovery, and
mooting any complaint that he did not have enough time. The docket does not reflect
any effort by Plaintiff to obtain any discovery between May 2 and July 1, 2019.
With regard to denial of the request for counsel , while Plaintiff's medical condition
could be considered complex , the Eighth Amendment medical issues raised in the
complaint are not. Moreover, Plaintiff has ably represented himself in this case.

5

In light of the foregoing , the Court finds that Plaintiff has failed to demonstrate
any of the grounds necessary to warrant a reconsideration of the relevant memorandum
and order. Plaintiffs motion for reconsideration will be denied .

Ill.

MOTIONS TO COMPEL
On September 19, 2019 and October 30 , 2019 , Plaintiff filed motions to compel

Defendant to respond to his discovery requests. (0 .1. 76 , 77) . As I indicated above ,
discovery was to be completed on or before July 1, 2019 . The discovery deadline was
extended upon Plaintiffs request so that he could conduct additional discovery and file
a response to the April 17, 2019 motion for summary judgment filed by Connections.
(See 0 .1. 62 , 65) . The first motion to compel attaches various subpoenas which appear
to have been issued contemporaneously with the filing of the motion , which is what
Plaintiff indicated in various places on the subpoenas. (See 0 .1. 76 at 7, 11 , 15, 19, 23 ,
27) .3 The other motion to compel (0.1. 77) does not specifically identify what Plaintiff is
seeking to compel , but it is reasonable to assume Plaintiff is referring to requests for
admissions and interrogatories directed to Defendant on July 26 , 2019 and August 2,
2019 , well after the July 1, 2019 deadline to complete discovery. (See 0 .1. 70-73) .
Courts have determined that "[m]otions to compel filed after the discovery
deadline are untimely and prohibited , absent good cause. " Zimmerman v. Edwin A.
Abrahamsen & Associates, 2017 WL 3701827 , at *4 (M.D . Pa . Aug. 28 , 2017) .
Discovery was extended upon Plaintiffs request. Plaintiff does not indicate why he only

3

Two of the subpoenas appear to be subpoenas previously served by Defendant. (See

0.1. 45, 49).

6

sought discovery from Defendant well after the deadline to complete discovery. Nor did
he seek additional time to do so. Any discovery disputes should have been raised prior
to the close of discovery, or at least should have been based on timely-filed discovery
requests. 4
The motions to compel will be denied.

IV.

MOTION FOR RECUSAL
Plaintiff seeks my recusal under 28 U.S.C. § 144. (See D.I. 80 , 81) . He claims

"a factual series of events" show a pattern of my personal bias or prejudice against him.
(D.I. 80 at 1). Section 144 provides, "Whenever a party to any proceeding in a district
court makes and files a timely and sufficient affidavit that the judge before whom the
matter is pending has a personal bias or prejudice either against him or in favor of any
adverse party, such judge shall proceed no further therein ." Plaintiff submitted an
affidavit in support of his motion .
It is the responsibility of the district judge against whom an affidavit is filed to
assess the legal sufficiency of the affidavit. United States v. Townsend, 478 F.2d 1072,
1073 (3d Cir. 1973) (stating that the mere filing of an affidavit "does not automatically
disqualify a judge"). The United States Court of Appeals for the Third Circuit has held
that the challenged judge must determine only the sufficiency of the affidavit, not the
truth of the assertions. Mims v. Shapp , 541 F .2d 415 , 417 (3d Cir.1976) . An affidavit is

4

The Court notes that Plaintiffs opposition to Defendant's motion for summary
judgment contains approximately 300 pages of exhibits including grievances, sick call
slips , and medical records. (See D.I. 66) .
7

legally sufficient if the facts alleged therein : (1) are material and stated w ith
particularity, (2) would convince a reasonable person that a bias exists , and (3) evince
bias that is personal , as opposed to judicial , in nature. United States v. Thompson , 483
F.2d 527 , 528 (3d Cir. 1973).
Here, it is evident that Plaintiff's allegations of bias consist of subjective
conclusions and disagreements with my legal rulings (or, lack of rulings) in this case .

See Jones v. Pittsburgh Nat'/ Corp., 899 F.2d 1350, 1356 (3d Cir. 1990) (holding that, to
be legally sufficient, an affidavit must contain more than mere conclusory allegations) ;

see also Cooney v. Booth , 262 F. Supp . 2d 494 , 502 (E.D. Pa. 2003) (holding that
opinions and conclusions based upon suspicion , conjecture , and speculation are legally
insufficient to warrant recusal). Moreover, the Third Circuit has repeatedly observed
that "a party's displeasure with legal rulings does not form an adequate basis for
recusal. " Securacomm Consulting, Inc. v. Securacom Inc., 224 F.3d 273 , 278 (3d Cir.
2000) ; accord, Hukman v. American Airlines, Inc. , 2019 WL 7369196 , at *6 (3d Cir. Dec.
31 , 2019) . The allegation that some of my legal rulings were in error can be raised on
appeal.
Plaintiff has not met the requirements of§ 144 and , therefore , his motion for my
recusal under 28 U.S.C. § 144 will be denied.

V.

MOTION FOR SUMMARY JUDGMENT
A.

Standards of Law

"The court shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
8

matter of law." Fed. R. Civ. P. 56(a) . When determining whether a genuine issue of
material fact exists, the court must view the evidence in the light most favorable to the
non-moving party and draw all reasonable inferences in that party's favor. Scott v.

Harris , 550 U.S. 372 , 380 (2007); Wishkin v. Potter, 476 F.3d 180, 184 (3d Cir. 2007) .
A dispute is "genuine" only if the evidence is such that a reasonable jury could return a
verdict for the non-moving party. Anderson v. Liberty Lobby, 477 U.S. 242 , 247-49
(1986) .

B.

Discussion

Defendant moves for summary judgment on the grounds that Plaintiff has failed
to establish an Eighth Amendment claim of deliberate indifference by Connections or its
staff or that a constitutionally defective policy or practice that caused his alleged
injuries .5 (0 .1. 58 ; 0 .1. 59) . Plaintiff opposes the motion and argues there are facts in
dispute that should be decided by a jury.6
The Eighth Amendment proscription against cruel and unusual punishment
requires that prison officials provide inmates with adequate medical care . Estelle v.

5

It appears that Defendant submitted Plaintiff's entire medical record of more than
1,000 pages. Most of the records are plainly irrelevant. For example, there are records
for time-frames other than the relevant time in 2015 and 2016 , dental records, mental
health records , sleep study records , lab results and segregation records , none of which
are relevant to the issue of Plaintiff's shoulder injury and the medical care he was
provided to treat the injury. The Parties, as well as the Court, are better served by the
submission of only relevant or arguably relevant material.
6 Plaintiff repeatedly argues that Defendant did not file its summary judgment motion at
the right time . (E.g. , 0.1. 80 at 2) . But I entered a scheduling order providing that such
motions be filed no later than April 17, 2019 (0.1. 34) , and Defendant filed its summary
judgment motion on April 17, 2019.
9

Gamble , 429 U.S. 97 , 103-05 (1976) . In order to set forth a cognizable claim , an inmate

must allege (i) a serious medical need and (ii) acts or omissions by prison officials that
indicate deliberate indifference to that need. Id. at 104; Rouse v. Plantier, 182 F.3d
192, 197 (3d Cir. 1999). A prison official is deliberately indifferent if he or she knows
that a prisoner faces a substantial risk of serious harm and fails to take reasonable
steps to avoid the harm . Farmer v. Brennan , 511 U.S. 825 , 837 (1994).
A prison official may manifest deliberate indifference by "intentionally denying or
delaying access to medical care ." Estelle v. Gamble, 429 U.S. at 104-05. "Unlike the
deliberate indifference prong of an adequacy of care claim (which involves both an
objective and subjective inquiry) , the deliberate indifference prong of a delay or denial of
medical treatment claim involves only one subjective inquiry-since there is no
presumption that the defendant acted properly, it lacks the objective, propriety of
medical treatment, prong of an adequacy of care claim. " Pearson v. Prison Health
Serv. , 850 F.3d 526 , 537 (3d Cir. 2017) . "Absent that objective inquiry, extrinsic proof is

not necessary for the jury to find deliberate indifference in a delay or denial of medical
treatment claim. " Id. "All that is needed is for the surrounding circumstances to be
sufficient to permit a reasonable jury to find that the delay or denial was motivated by
non-medical factors ." Id.
When a plaintiff relies upon a theory of respondeat superior to hold a corporation
such as Connections liable, he must allege a policy or custom that demonstrates such
deliberate indifference. Sample v. Oiecks, 885 F.2d 1099, 1110 (3d Cir. 1989); Miller v.
Correctional Med. Sys., Inc. , 802 F. Supp. 1126, 1132 (D . Del. 1992). To establish that

10

Defendant is directly liable for the constitutional violations, Plaintiff "must provide
evidence that there was a relevant [Connections] policy or custom, and that the policy
caused the constitutional violation[s] [plaintiff] allege[s] ." Natale v. Camden Cty. Facility,
318 F.3d 575 , 584 (3d Cir. 2003) (corporation under contract with the state cannot be
held liable for the acts of its employees and agents under theories of respondeat
superior or vicarious liability). Assuming the acts of Defendant's employee have
violated a person's constitutional rights , those acts may be deemed the result of a policy
or custom of the entity for whom the employee works , thereby rendering the entity liable
under§ 1983, where "the inadequacy of existing practice [is] so likely to result in the
violation of constitutional rights , that the policymaker can reasonably be said to have
been deliberately indifferent to the need. See id.
"'Policy is made when a decisionmaker possessing final authority to establish ...
policy with respect to the action issues an official proclamation , policy or edict. "' Id ..
"Custom, on the other hand , can be proven by showing that a given course of conduct,
although not specifically endorsed or authorized by law, is so well-settled and
permanent as virtually to constitute law. " Miller v. Corr. Med. Sys., Inc., 802 F. Supp. at
1132.
Plaintiff argues that Defendant did not follow standard steps for his injury, did not
provide enough pain medication, delayed in providing treatment because ten months
passed before he saw Dr. DuShuttle, and was deliberately indifferent in providing him
care .

11

There is no dispute that Plaintiff sustained an injury that required treatment. The
undisputed evidence of record is that Plaintiff received continuous medical treatment
and care for his medical condition through treatment both inside and outside the prison ,
referrals and treatment with outside medical personnel including physical therapy,
surgery, and follow-up care, as well as regular medical care within the prison .
Plaintiff's delay-in-care claim rests upon the fact that that he did not see Dr.
DuShuttle for about nine months after his injury and about three months (Nov. 23 , 2015
to Feb . 26 , 2016) after his grievance. However, the record reflects that after the injury
Plaintiff was provided conservative treatment, includ ing not only anti-inflammatory drugs
but also a course of physical therapy. When that did not prove fruitful , Plaintiff was
given an MRI , referred to Dr. DuShuttle and underwent surgery. Plaintiff complains that
he did not receive a shoulder sling or supportive pillow as ordered by Dr. DuShuttle.
The record reflects, however, that due to security concerns, Medical staff sent a request
to the Warden to receive permission to provide the items to Plaintiff. In other words , the
prison administration had the final say on whether those items passed security muster.
Connections is not responsible for security decisions. Finally, after surgery, Plaintiff
received another round of physical therapy and his records indicate he was provided
with pain medication , albeit not always the drug of his choice.
There is a distinction between claims that treatment was delayed or denied and
claims that treatment occurred but was inadequate. Pearson , 850 F.3d at 535 . The
Eighth Amendment's proscription against cruel and unusual punishment mandates that
incarcerated offenders receive adequate medical care . However, "a prisoner does not
12

have the right to choose a specific form of medical treatment. " Lasko v. Watts, 373 F.
App'x. 196,203 (3d Cir. 2010) (quoting Harrison v. Barkley, 219 F.3d 132, 138-40 (2d
Cir. 2000)). In addition , there is a presumption that treatment is proper, absent
evidence that there was a violation in the standard of care. Pearson , 850 F.3d at 535.
Here, there is no evidence that medical personnel violated any standard of care.
Moreover, the treatment was reasonable . No reasonable jury could find an Eighth
Amendment violation based on a claim that medical personal were deliberately
indifferent to his serious medical needs in treating Plaintiff or through delay or denial of
medical care .
Nor does the record establish a defective policy, custom or practice that caused
an injury to Plaintiff. To the contrary, the record evidence is that Plaintiff has
consistently been provided medical care and treatment for his medical condition. Given
that Plaintiff failed to produce evidence of an Eighth Amendment violation or that a
violation was caused by Connections' policy or custom , summary judgment is proper on
behalf of Connections . See Palakovic v. Wetzel, 854 F.3d 209 , 232 (3d Cir. 2017) ; see
also Fields v. Delaware Oep 't of Corr., 787 F. App 'x 796, 799 (3d Cir. 2019) (granting
summary judgment proper for corporate medical provider where there is no evidence of
an Eighth Amendment violation and no evidence of a violation caused by the medical
provider's policy or custom) .
No reasonable jury could find in favor of Plaintiff. Therefore, the Court will grant
Defendant's motion for summary judgment.

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VI.

CONCLUSION
For the above reasons , the Court will : (1) deny Plaintiffs motion for

reconsideration , motions to compel , and motion to disqualify judge (0 .1. 56, 76 , 77 , 80) ;
and (2) grant Defendant's motion for summary judgment (0 .1. 58) .
An appropriate order will be entered .

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